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Central Law Journal.

defendant married another woman within a few days after the opinion was handed down ;'

and suggests the query, whether the plaintiff ST. LOUIS, MO., OCTOBER, 26, 1900.

may not, now that the defendant's physical condition is such that he may enter the mar

ried state without danger to his life-as In a recent Virginia case-Sanders v. Cole shown by his actual marriage to anotherman—the supreme court of appeals of that institute and successfully prosecute a second Stale applied to a marriage contract the ele. action against him. mentary doctrine excusing non-performance which is occasioned by the act of God. In the law of contracts,all misfortunes and accidents In Smith v. State, before the Court of Crim. arising from inevitable necessity which human inal Appeals of Texas, it appeared that eviprudence could not foresee or prevent, in dence was introduced in the lower court, on cluding "illness," are comprehended under a motion to quash an indictment showing the expression “act of God;" and if the per- that, in selecting the grand jury which found formance of any contract is rendered impos- the indictment, the jury commissioners exsible by the act of God alone, such fact fur cluded all negroes on account of their race nishes a valid excuse for its non-performance, (the defendant being a negro); that the disand such provision inheres in every contract. trict judge selected no one but whites as jury In applying these principles to an action for commissioners; that for many years the breach of promise of marriage, the Virginia negro race had been excluded from serving court held that a contract to marry is coupled as jury commissioners and petit jurors; that with the implied condition that both parties there were many negroes in the county comremain in the enjoyment of life and health, petent to serve on juries and as jury comand if the condition of the parties has so missioners; and that there was a strong prejuchanged that the marriage state would en

dice against negroes in the county, on acdanger the life or health of either, a breach count of their race. It was held, that such of the contract is excusable. In the case at action was a denial of the equal protection of bar the evidence tended to show that the de

the laws, contrary to the fourteenth amendfendant was suffering from a disease affect ment to the federal constitution. In Carter ing the urinary crgans which had developed v. State, 69 Tex. Cr. Rep. 345, the same subsequent to bis engagement to the plaintiff, question was passed upon and it was held and in consequence of which he had sought that the lower court did not err in overruling release from the engagement. The court such a motion. A writ of error was sued out holds that he acted in good faith, and that to the Supreme Court of the United States, and his pbysical condition justified the alleged the decision in that case was there reversed. • breach of contract to marry the plaintiff ; and Carter v. Texas, 20 Sup. Ct. Rep. 687. After therefore reverses the judgment in her favor. stating the question involved, Mr. Justice In a note to the decision the Virginia Law Gray delivering the opinion of the court uses Register says that it is in accord with a pre this language: "Whenever by any action of a ponderance of the little authority on the sub State, whether through its legislature, through ject. The court cites the case of Allen v. its courts, or through its executive or adminisBaker, 36 N. Car. 91, and Shackelford v. trative, officers, all persons of the African Hamilton, 93 Ky. 80, which appear to be the race are excluded, solely because of their only American authorities on the subject. A race or color, from serving as grand jurors contrary decision, by a divided court, was

in the criminal prosecution of a person of the made in the case of Hall v. Wright, 96 E. C. African race, the equal protection of the L. 745. In tbat case, of eleven judges pass laws is denied to him, contrary to the fouring upon the question and delivering opinions teenth amendment of the constitution of the seriatim, six were against the plea and five United States. Strauder v. West Virginia, were sustaining it. Our contemporary also 100 U. S. 303, 25 L. Ed. 664 ; Neal v. Delanotes an interesting sequel to the case at bar, ware, 103 U. S. 370, 397, 26 L. Ed. 567; not shown on the record, in that the aftsicted Gibson v. Mississippi, 162 U. S. 565, 16

Sup. Ct. Rep. 904, 40 L. Ed. 1075.” The of Georgia v. Mechanics' Savings Bank, 27 Ga. Texas court, in the present case says that

262, that, where a bill of exchange or draft is inso we have had no occasion to change our

dorsed in full by the payee, suit cannot be main

tained in the name of the payee while the inviews therein expressed, and, were it an orig

dorsement stands.' The decision, however, was inal proposition, would still adhere to our

rendered by only two judges, and we are thereoriginal opinion. But, as indicated, this fore not compelled to follow it. In Leitner v. matter has been passed upon by the Supreme Miller, 49 Ga. 486, it appeared that Miller sued Court of the United States, which in matters

C. B. Leitner, as principal, and S. A. Leitner, as

indorser, on a note made by C. B, Leitner, payof this sort controls our action.”

able to S. A. Leitner or bearer, and indorsed as

follows: ‘S. A. Leitner, J. V. H. Allen, TreasNOTES OF IMPORTANT DECISIONS.

urer, L. H. Miller. Pay I. C. Plant, or order, for collection.' The plaintiff introduced the note

and closed, when the defendant moved for a nonNOTE-ACTION BY PAYEE-TITLE.-In Bowan suit, on the ground that plaintiff had shown title v. Equitable Mortgage Co., 36 S. E. Rep. 601, de out of himself by his indorsement on the note cided by the Supreme Court of Georgia, it was sued on. The motion was overruled, and the deheld that the payee of a promissory note, in pos fendant excepted. This court held that, 'although session of the same, is presumed to own it, al plaintiff's name may be on the back of the note though his indorsement thereon, in full or in sued on, he may recover against the maker, as the blank, may stand uncanceled; that he may sue law will presume, in the absence of proof to the upon such note, and his title to the same cannot contrary, that an indorsement by him was never be inquired into, unless it be necessary for the completed by delivery, or, if he had delivered it protection of the defendant, or to let in the de so indorsed, that he had taken it up, and was fense which he seeks to make. The court said in again the legal holder or indorsee.'' part:

“The note was in the possession of the payee, NEGLIGENCE · PERSONAL INJURIES-MASTER and the presumption was that it was the owner, AND SERVANT.-In Stewart v. California Imnotwithstanding its indorsement upon the note provement Co., decided by the Supreme Court of stood uncanceled, and it had a right to sue thereon California, it appeared that a city hired from an in its own name. In Dugan v. United States, 3 improvement company the use of a steam roller Wheat. 172, 4 L. Ed. 362, it was held that if any and engineer. The city had full control over the person who indorses a bill of exchange to another, movements of the steam roller, and directed its wbether for value or for the purpose of collec engineer where to operate it. The company paid tion, shall come to the possession thereof again, the salary of the engineer, and had the power to he shall be regarded, unless the contrary appear discharge him. The roller, being directed to in evidence, as the bona fide holder and proprietor operate where the ground was too soft to hold it of such bill, and shall be entitled to recover, not up, sank in the mud, and the engineer, in a proper withstanding there may be on it one or more in exercise of his duties, put on full steam, and exdorsements in full, subsequent to the one to him, tricated the roller from the mud. The steam tben without producing any receipt or indorsement escaped with a loud noise, and frightened the back from either of such indorsees, whose dames horse of a traveler, who was permitted by the he may strike from the bill, or not, as he may think city's superintendent to approach without warnproper.' In Daniel, Neg. Inst., sec. 1198, the ing, injuring him. It was held that the city was rule is stated to be that, 'where there appears on liable therefor, and not the company. The folthe paper the plaintiff's own indorsement, it will lowing is from the opinion of the court: be presumed either that he had not perfected his "The accident resulted from the necessity of indorsement by delivery, or that the paper bas increasing the steam in the boiler, and tbis bebeen returned to him as his own property, and in came necessary because the roller had been dieither case he has the right to sue upon it.' In rected to work where the ground was too soft to 2 Rand., Com. Paper, sec. 717, the author says: hold it up. There is no pretense that the en“The payee's possession of a bill or note is prima gineer was unskillful in managing the engine in facie evidence of title in bim, notwithstanding his the effort to extricate it. The roller and enown indorsement is erased, and even, it has been gineer had been working for the city for five days held, notwithstanding his own special indorse previously without complaint as to the fitness of ment, or indorsement in blank, incanceled.' To the roller or skillfulness of the engineer, and the the same effect, see 3 Rand., Com. Paper, sec. complaint now made is not as to the facts just 1645, and 4 Am. & Eng. Enc. Law, 280. There mentioned, but that the engineer was at fault in are numerous adjudicated cases to this effect not warning plaintiff that a high pressure was on cited by the authorities above referred to, and the boiler, and the safety valve was liable to let there can be no question but that the great the steam escape. It seems manifest to us that weight of judicial opinion sustains the doctrine. the accident resulted while the engineer and the It is true that this court held in Southern Bank roller were under the direction and control of the

city superintendent, and that for the time being cargo from the vessel and lower it on the wharf.
the company had no control whatever in the mat By the negligence of the engineer an employee
ter, and for that particular work was not the en of the stevedore was injured. It was held that
gineer's master. Respondent suggests that there defendants, as masters, were responsible for the
is no evidence tending to show that the engineer engineer's negligence. It does not appear from
was released from the service of the company. the report of the case that the stevedore exercised
The evidence on this point showed only that the any control over the engineer. The defendants
engineer was paid for his services by the com agreed to furnish power; and we cannot discover
pany, and this is entirely consistent with the right that any directions were given by the stevedore
of the city authorities to direct where and how to the engineer. We do not think the case neces-
the work was to be done after it had taken him sarily conflicts with the principles upon which
and the roller into its employ. A city had leased the present case must rest, and, if it does, we can-
from a railroad company an engine and train of not follow it. Appellant cites, contra, Donovan
cars to carry gravel to its waterworks, and the v. Syndicate (1893), 1Q. B. 629, where in a similar
company agreed to furnish a conductor, engineer, case the lessee gave directions as to the working
fireman and brakeman to manage the train, all of of the crane used in unloading the vessel. The
whom it paid, and also furnished necessary fuel lord chief justice said: “The key to the whole
for the engine. The conductor had general case is that Jones & Co. were loading the ship,
charge of running the train, but received his in and not the defendants. The crane was being
structions as to the performance of his work from used for Jones & Co.'s purposes, and not for
the city employees. The plaintiff was injured by those of the defendants, and the former must, for
the negligence of the engineer in running at an that particular job, be considered as Wang's
unlawful speed. It was held that the city masters.' Huff v. Ford was the case of a horse,
was liable. The court said: 'It is well settled wagon and driver hired to the city, and the injury
that one who is the general servant of another was to plaintiff's window. The driver struck the
may be lent or hired by his master to another for horse a violent blow, causing it to kick a loose
some special service, so as to become, as to that shoe through the window. The case seemed to
service, the servant of such third party. The turn upon defendant's duty to see that his horse
test is whether, in the particular service which was properly shod. The case would be anal.
he is engaged to perform, he continues liable to ogous if the injury in the present case had re-
the direction and control of his master, or be sulted from defects in the engine, which is not
comes subject to that of the party to whom he is claimed to have been the case. We do not find
lent or hired.' Coughlan v. City of Cambridge, that any of the cases cited by plaintiff necessarily
166 Mass. 268, 44 N. E. Rep. 218. An agreement conflict with the views we have expressed."
was made by a railroad company with H & Co.,
by which the latter were to construct a branch
road, the railroad company "to furnish all motive

PROOF OF MARRIAGE IN CRIMINAL power and cars, and operate the construction

CASES. trains.' H & Co. had control over the laying of the track. It was sought to hold the railroad General Presumption in Favor of Marcompany for the negligent conduct of the en

riage.-- Generally every intendment is in gineer in running the train over the unfinished track at a dangerous rate of speed without keep

favor of marriage, because it is for the highest ing a lookout ahead. It appeared that H & Co.

good of the parties, of the children and of the had the right to direct where to place the train, community that all intercourse between the to unload, stop or start it, and it was held that the sexes in its nature matrimonial should be so fact that the crew were retained on the railroad

in fact. In criminal cases, bigamy, adulcompany's pay rolls did not tend to show that the

tery and the like, a different rule obtains, berailroad company retained any control of the movements of the train. The railroad company

cause of the presumption of innocence in genwas held not liable. Miller v. Ry. Co., 76 Iowa,

eral keeping with the fundamental rules of 655, 39 N. W. Rep. 188. Much to the same effect criminal trials. This is eminently properare the following cases : Byrne v. R. R. Co., 9 because the general presumption of innocence C. 0. A. 666, 61 Fed. Rep. 605; Powell v. Con

wbich would operate to legitimize children struction Co., 88 Tenn. 692, 13 S. W. Rep. 691. Respondent recites in reply: Coyle v. Pierre

and preserve the sanctity of man in his relapont, 37 Hun, 379; Huff v. Ford, 126 Mass. 24;

tion with woman in one case, tends in the Ames v. Jordán, 71 Me. 540; Gerlach v. Edel other instance to make him guiltless of gross meyer, 88 N. Y. 645, and DuPratt v. Lick, 38 Cal. offenses against the marriage contract. It 691. In the ease reported in Hun a stevedore was will be found that in every instance, where, employed by the owners of a vessel to unload it at docks owned by defendants. Detendants hired

1 Bishop on Mar. & Div. ch. 24, sec. 457; Bishop on to the stevedore a portable engine, with an en

Statutory Crimes, secs. 608, 610. gineer to run it, to furnish power to hoist the 2 Wharton on Evidence, secs. 85, 87.


to sustain the charge against the accused, it what is sufficient evidence of a marriage in is sought to prove a prior subsisting marriage fact, and ought not to be regarded in crimas an element of the offense, as in indict.

ipal cases. The following criminal cases adments for adultery, incest, polygamy and here to this rule in all its original strictness, lascivious cohabitation, that this prior mar and in some instances even give increased riage becomes, more than any other assumed stringency because of a partial view of the fact in the case, the corpus delicti, to be es points decided in later cases supposed to es. tablished by something like direct evidence.3 tablish the rule.? In other States the rule bas Rule that Marriage in Fact Must be Proved

been very considerably relaxed, and this fact by Direct Evidence-Conflict of Authority. of marriage may be established by any eviThe question is simply, what is competent dence, even circumstantial, which, not restevidence to prove a marriage in fact,"

ing on presumption, is admissible and com. which expression, as used in the books, has petent to sustain a conviction; provided, of acquired a technical meaning in the law, and

course, that it is sufficient to satisfy the jury signifies the fact proved by direct testimony after overcoming the adverse presumptions. or by any other evidence, the effect of which It should be noticed that there is a distincis not derived from mere presumption arising tion between presuming a marriage from out of cohabitation. Regarding this ques- slight evidence, as cobabitation and repute, tion the courts are at great variance.

which is generally done in civil cases, and Some courts hold that a marriage in fact proving a marriage by circumstantial evimust be proved by direct evidence not de dence. Accordingly, in some of the States rived from presumption in any degree what where the strict English rule has been reever. This rule in many of the cases may be laxed, the courts, keeping in mind this disattributed to a misconception of certain early tinction, have declared that a marriage in English cases, which are relied upon as au fact is always provable by circumstantial evi. thority, and which are held by the courts to dence as well as by direct evidence, saying establish an inflexible rule of evidence to that direct evidence is not primary and cirwhich they are bound to adhere. The cumstantial evidence secondary, but both are earliest case of which record has been kept of the same degree, though one may, in a in the English reports, and the one most re given case, be more satisfactory. Whatever ferred to, is that of Morris v. Miller, which is admissible on general principles, or by the singularly enough, is not a criminal proceed statutes which have been passed in many ing at all, but an action for criminal con States, which satisfies the trior of the fact versation. This case was followed twelve

to the requisite degree of certainty, proves a years later by another of the same nature

fact of marriage valid and formal under the Birt v. Barlow. In these cases the plaint-law. Such circumstantial evidence incomiffs attempted to establish their marriages by petent standing alone (because not sufficient giving in evidence their own declarations,

of itself in a particular case to establish such and proving their recognition of, and cohab

a marriage), and which has withdrawn from itation with, the women alleged to be their

it the consequence of affording & basis of a wives. The opinion of the court in the presumption of law, may, nevertheless, be former case, delivered by Lord Mansfield, is relevant to the issue of a marriage in fact, only to the effect that “in this kind of action

and receivable among the proofs of such a (criminal conversation) there must be evi- marriage, by reason of its explaining and give dence of marriage in fact. Acknowledgment, ing character to the more effective testicohabitation and reputation are not sufli mony. The conflict of authority is most cient." And in the same breath the court says: “But we do not, at present, define what may 7 State v. Roswell, 6 Conn. 446; People or what may not be evidence of a marriage Humphrey, 7 Johns. 314; State v. Armstrong, 4 Minn. in fact.” Neither of these cases determine

335; State v. Johnson, 12 Mion. 476, 93 Am. Dec. 241;

Com. v. Norcross, 9 Mass. 492; Com. v. Littlejohn, 15 3 Bishop on Statutory Crimes, sec. 608; 2 Greenleaf Mass. 163. on Evidence, sec. 461.

8 Bishop on Statutory Crimes, sec. 609; State v. * State v. Sherwood, 68 Vt. 414, 35 Atl. Rep. 353. Sherwood, 68 Vt. 414, 35 Atl. Rep. 352; West v. State, 34 Burr. 2056, 1 W. Bl. 632.

11 Wis. 209; Cook v. State, 11 Ga. 53, 56 Am. Dec. 415; 6 Doug. 171.

Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; State

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frequent concerning the competency and hold that evidence of general reputation in sufficiency of evidence offered to prove the the community of the existence of the marfact of marriage. Therefore, it is preferable riage relation and proof of cohabitation is to examine the authorities with reference to competent at least as tending to prove such the kinds of testimony offered to prove the relation, if not alone sufficient to establish it. marriage in fact to gain an intelligent idea of In the case of United States v. Higgerson,? the various modifications of the English rule the court says: "The proof of the marriage that have been declared by the courts of the is frequently required many years after and different States.

remote from the place of its occurrence, Reputation. There is little discussion as when the written evidence and the record of to the admissibility of evidence of the repute it may be lost or are inaccessible, when its or general reputation of the defendant, the eyewitnesses are dead or forgotten. Not courts being apparently agreed that this kind only that, but in this country the laws govof evidence alone is not legal proof of mar erning it are so varied, some not even requirriage in criminal cases. The cases proceed ing any record of it, or even a nuptial cereon the ground that the facts themselves mony, that the difficulty of direct proof, and should be shown, and it is for the jury to draw

the expediency of permitting the indirect, the inferences. To allow the repute of guilt become evident. Under such circumstances in the neighborhood without proof of the acts, why should not the facts that a man and or evidence of cohabitation, and that the woman lived in a community with the apparformer alleged wife was alive and undivorced

ent relation of husband and wife, bave been would be manifestly improper. But in Mag received in society and been known as such, sachusetts and Minnesota it has been enacted have so conducted themselves publicly as to by statute that evidence of general repute is

lead their neighbors to believe them such, competent proof of marriage. Under these have by their acts established in the comstatutes evidence of this character is in itself munity a general reputation that they are alone, sufficient, whenever its strength and married, be permitted as evidence tending, weight are such as would reasonably produce

at least, to show the existence of such relaupon the minds of the jury that degree of tion? These views are sustained by sufficonviction requisite in all criminal proceed

cient authority, as well as by reason, to justify

their adoption, and in criminal as well as in Reputation and Cohabitation.-Whether

civil cases. It must not, however, be congeneral repute accompanied by evidence of

cluded that proof of reputation of the marcohabitation is sufficient, is a question upon riage relation is alone sufficient; it is but one which the courts are more at variance. There

of the proofs; it only tends to establish the are some decisions to the effect that, in the

fact which, with other proofs, may become absence of statute, such evidence is not ade

conclusive."'18 quate, that it is not proof of actual marriage People v. Lambert, 5 Mich. 349, 72 Am. Dec. 49; Bird in fact, but is only evidence of cohabitation

V. Com., 21 Gratt. 800; Brown v. State, 52 Ala. 338; with its attendant shadows and presump- | West v. State, 1 Wis. 209. tions. Other and more numerous decisions

12 46 Fed. Rep. 750.

13 United States v. Tenney (Ariz.), 11 Pac. Rep. 1. Hughes, 85 Kan. 626, 57 Am. Rep. 195.

472; People v. Stokes (Cal.), 12 Pac. Rep. 71; State v. 9 Morgan v. State, 11 Ala. 289; Buchanan v. State, 55 Hughes, 35 Kan. 626, 57 Am. Rep. 195; Lowery v. Ala. 154; Wood v. State, 62 Ga. 406; People v. Miner, People (Ill.), 50 N. E. Rep. 165; Hiler v. People, 156 58 Ill. 59; Arnold v. State, 53 Ga. 574; West v. State, 1 Ill, 519, 41 N. E. Rep. 181; Com. v. Thompson, 99 Wis. 209; Dumas v. State, 14 Tex. Ct. App. 464, 46 Mass. 444; Com. V. Johnson, 10 Allen, 196; State v. Am. Rep. 241; State v. Hughes, 36 Kan. 626, 57 Am. Sherwood (Vt.), 35 Atl. Rep. 352; Com. V. Jackson, 11 Rep. 195; Adkinson v. State (Tex.), 30 S. W. Rep. Bush (Ky.), 1679, 21 Am. Rep. 225; Dumas v. State, 14 357; United States v. Langford (Idaho), 21 Pac. Rep. Tex. Ct. App. 464, 46 Am, Rep. 241; Hayes v. People, 409.

25 N. Y. 390; United States v. Simpson (Utah), 7 Pac. 10 Mass. Gen, St. ch. 106, sec. 22; Minn. Gen. St. ch. Rep. 257; State v. Gonce, 79 Mo. 600; Halbrook v. 73, sec. 89.

State, 34 Ark. 511, 36 Am. Rep. 17; State v. Cooper n State v. Rood, 12 Vt. 296; Hiler y. People, 156 Ill. (Mo.), 15 S. W. Rep. 327; Hayes v. People, 25 N. Y. 519, 41 N. E. Rep. 181; Green v. State, 21 Fla. 403, 58 896; Gabagan v. People, 1 Park. Cr. (N. Y.) 883; State Am. Rep. 670; State v. Hodgkins, 19 Me. 156; State v. v. Hilton, 3 Rich. (S. Car.) 434, 45 Am. Dec. 783; State Libby, 44 Me. 169, 69 Am. Dec. 115; Lowery v. People v. Nadal (Iowa), 29 N. W. Rep. 451; Cameron v. State, (III.), 50 N. E. Rep. 165; Case v. Case, 17 Cal. 598; 14 Ala. 546; Green v. State, 59 Ala. 68; Bird v. Com.,


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